4 Stafford Matthews Stafford Matthews is a technology transactions and licensing lawyer and the managing partner of the Palo Alto office of Dentons, a global law firm with over 2,500 lawyers and 79 offices in 52 countries, including key offices in New York, Washington D.C., Silicon Valley, San Francisco, London, Hong Kong, Shanghai, the Middle East and Africa. Mr. Matthews represents technology and industrial companies in the strategic development and exploitation of intellectual properties and products, complex contract negotiations and dispute resolution. His practice focuses on the licensing and transfer of IP rights and technologies in domestic and international markets; providing forensic advice on contentious contractual issues; establishing and enforcing distribution systems for products and services; antitrust and unfair competition matters in the US and the European Union; and the negotiation of cross border alliances and other business structures. He is dual qualified as an English solicitor and a US lawyer and has extensive experience in both European and Asian markets. Mr. Matthews recently completed his term as the Chairman of the Board of Legal Specialization for the State Bar of California. He has degrees from the University of California at Berkeley, where he earned an A.B. in Rhetoric, the University of Michigan Law School, and King s College London, where he holds a post-graduate diploma in European Union Competition Law.

5 INDEMNIFICATION CLAUSES

6 Basic principles* Indemnification is a contractual obligation by one party [X] to pay or compensate for the losses or damages or liabilities incurred by another party to the contract [Y] or by some third person. [E.g., Weissman v. Sinorm Deli, 88 N.Y.2d 437, 446 (N.Y. 1996); Cal. Civ. Code 2772)]. An indemnitor is the party who is obligated to pay another. An indemnitee is the party who is entitled to receive the payment from the indemnitor. * Note that the following presentation deals with agreements and licenses between corporate or other commercial parties generally, and does not cover contracts in regulated industries such as insurance.

7 Basic principles Common types of losses subject to contractual indemnification: Breach of representation or warranty by [X]. Breach of agreement or covenant by [X] Losses incurred by [Y] under specified conditions Third party claims against [Y] for specific subject matter, such as (1) claims of infringement or misappropriation of IP, (2) use of goods by the indemnitee, (3) product defect or liability claims, (4) claims arising out of death or personal injury.

8 Function of indemnification Risk shifting Indemnification provisions are a means of shifting risk between parties to an agreement. Part of an integrated risk allocation system also comprised of: Representations and warranties of the parties, including disclaimers of implied warranties and exclusions and limitations based on disclosure schedules. Limitations of liabilities such as consequential and related damages and contractual caps on liabilities. Contractual statutes of limitation. Insurance.

9 Function of indemnification Adjustment of value In addition a mechanism to reallocate economic value in a transaction, even when neither party is culpable: In an acquisition transaction, adjusts purchase price by reallocating consideration based on issues that arise after deal is signed or closed. In licensing or commercial transactions, apportions risk where there may be uncertainty as to scope or enforceability of rights or the potential for claims.

10 Issue [1]: Warranties versus Indemnities A warranty is an assurance to the other party that a fact, condition or quality is and will be true. [CBS, Inc. v. Ziff-Davis Publishing Co., 75 N.Y.2d 496, 553 N.E.2d 997 (1990) (other party purchased a promise as to the existence and truth of the warranted facts)]. The warranty is an integral part of the contract, and in the event the warranty is not true, the other party has the full range of rights and remedies under law for breach of contract.

11 Issue [1]: Warranties versus Indemnities For example, the main attributes of a noninfringement warranty by a licensor: Substantive liability for breach of contract. In addition to damages the licensee may withhold performance and terminate the contract for cause, depriving the licensor of the benefit of the contract. No obligation of the licensor to pay damages until infringement established. If licensee is successful in defending against the infringement claim, no breach and no right of the licensee to legal fees or other compensation for having to litigate the issue.

12 Issue [1]: Warranties versus Indemnities Warranty contrasted with indemnity: Indemnity under the same facts is not a breach of the contract with usual remedies such as termination or right to withhold performance, provided the indemnity obligation itself is discharged. Particularly relevant in intellectual property issues: for example, if a licensor -- consider indemnity but not warranty on scope or non-infringement if there could be issues regarding validity or enforceability of IP or other risks of third party claims.

13 Issue [2]: Abnormal risks or costs Note further that certain proposed terms for a warranty or indemnification will or should be fundamentally nonnegotiable from the position of the indemnifying party [indemnitor]. The greater the risk versus the expected return to a party, the more nonnegotiable its position. Example: Party A demands that Party B provide an unlimited warranty and indemnity against third party patent claims, when economics of transaction do not justify either an investigation as to possible claims or a bet the business exposure in patent litigation.

14 II. Indemnification Sample Clause

15 Indemnification Clause Example Company shall fully indemnify, hold harmless and defend (collectively indemnify and indemnification ) ABC and its directors, officers, employees, agents, stockholders and Affiliates (collectively, Indemnified Parties ) from and against all claims, demands, actions, suits, damages, liabilities, losses, settlements, judgments, costs and expenses (including but not limited to reasonable attorney s fees and costs), whether or not involving a third party claim, which arise out of or relate to (1) any breach of any representation or warranty of Company contained in this Agreement, (2) any breach or violation of any covenant or other obligation or duty of Company under this Agreement or under applicable law, (3) (4) (5)] [other enumerated categories of claims and losses], in each case whether or not caused by the negligence of ABC or any other Indemnified Party and whether or not the relevant Claim has merit.

16 III. Scope of Indemnification Clause: What is Covered?

17 Rules of construction The indemnification provision of an agreement is interpreted under the same rules governing any other contracts, with a view to determining the intent of the parties. The rights and duties of the indemnitor and indemnitee are generally determined from the express terms of the contract itself. [E.g., Crawford v. Weather Shield Mfg., Inc., 44 Cal. 4th 541, 552 (2008); Gibbs-Alfano v. Burton, 281 F.3d 12, (2d Cir. 2002); Weissman v. Sinorm Deli, 88 N.Y.2d 437, 446 (N.Y. 1996)].

19 Rules of construction In the case of California, the California Civil Code section 2778 provides specific rules of interpretation for a contract of indemnity, unless a contrary intention appears in the agreement. Cal. Civ. Code Note that obligations of the indemnitor and rights of the indemnitee generally are narrowly construed, in part under the theory that in normal commercial contracts, the indemnitee often has superior bargaining power. [E.g., Crawford v. Weather Shield Mfg., Inc., 44 Cal. 4th 541, 552 (2008); Hooper Assocs. v. AGS Computers, Inc., 74 N.Y.2d 487, 491 (1989)].

20 Scope of indemnification indemnify, hold harmless and defend

21 Issue [3]: Indemnify indemnify : to pay or compensate the other party for its own legal liabilities or losses. [E.g., Rexam Bev. Can Co. v. Bolger, 620 F.3d 718, 735 (7th Cir. 2010); Cal. Civ. Code 2772 (to save another from a legal consequence of an act)]. The obligation to indemnify does not occur until the end of a case or other resolution, when indemnitee has had a judgment entered against it for damages, or has made payments or suffered actual loss. [E.g., Mizuho Corporate Bank (USA) v. Cory & Assocs., 341 F.3d 644, 650 (7th Cir. 2003); McDermott v. New York, 50 N.Y.2d 211, 216 (N.Y. 1980); Cal. Civ. Code 2778(1), (2)].

22 Issue [3]: Indemnify Fees and Costs Attorney s Fees: The right to indemnity includes the reasonable costs of defense incurred in good faith, payable as part of the indemnified amount. [Klock v. Grosodonia, 251 A.D.2d 1050, 674 N.Y.S.2d 187 (N.Y. App. 1998) ( any and all 3d party claims)]. The same rule in California. [Cal. Civ. Code 2778(3). See Cal. Code Civ. Proc ]. Caution: (1) The laws of some other states [such as Illinois] do not permit attorney s fees or other costs of defense as part of the indemnity, where not expressly stated and there is no duty to defend. (2) The costs of e-discovery and experts fees are open to question.

23 Issue [3]: Implied or Equitable Indemnity Implied or Equitable Indemnity: Note that a right of implied or equitable indemnity can arise where (1) the parties have failed to include an indemnity provision in an agreement or there is no agreement, and (2) one party [implied indemnitor] is considered "at fault while the other party [implied indemnitee] is blameless though liable: such as in cases of strict liability, implied warranty, or some other legal principle that imposes liability regardless of fault. [E.g., Kelly v. Diesel Const. Div. of Carl A. Morse, 35 N.Y.2d 1, 358 N.Y.S.2d 685 (1974); E. L. White, Inc. v. Huntington Beach, 21 Cal. 3d 497, (1978); Linear Technology Corp. v. Applied Materials, Inc., 152 Cal. App. 4th 115, 127 (2007)].

24 Issue [3]: Implied or Equitable Indemnity Where the parties have entered into an express indemnification clause, the extent of their rights and duties generally are determined under the terms of the contract and not under the doctrine of equitable indemnity. [E.g., E. L. White, Inc. v. Huntington Beach, supra; Maryland Casualty Co. v. Bailey & Sons, Inc., 35 Cal. App. 4th 856, 864 (1995)]. However risk exists in situations where (1) there are express mutual indemnification clauses but some matters are not covered, or (2) only a one-way indemnification clause exists and the other party has no express indemnification obligations, or (3) the contract contains no indemnification clauses at all.

25 Issue [3]: Implied or Equitable Indemnity Implied or equitable indemnity therefore should be expressly disclaimed to avoid unintended application of the doctrine. For example: No party to this Agreement shall be entitled to any form of implied or equitable indemnification at any time, whether based on a theory of contract, torts (including negligence), strict liability or otherwise, and any right thereto is hereby irrevocably waived and disclaimed by each of the parties. or No indemnitee or any other person or entity shall be entitled to any form of equitable or implied indemnification at any time."

26 Issue [3]: Indemnify versus Defend Duty to defend : The duty to defend is separate from and independent of the duty to indemnify. In contrast to the obligation to indemnify, a contractual obligation to defend requires the party to immediately and actively defend or fund the defense of any claim at the outset of the claim or litigation. The contractual duty to defend thus arises first in time before the duty to indemnify. Unless expressly limited by contract, obligation to defend includes all claims potentially subject to indemnification. [E.g., Crawford v. Weather Shield Mfg., Inc., 44 Cal. 4th 541, , 559 (2008)].

28 Issue [3-1]: Defense considerations In negotiating contractual terms in connection with the right to defend, it must be determined whether the indemnified claims represent only a finite financial obligation in a particular case, perhaps in conjunction with a limitation on liability clause or instead pose a more existential risk for your company if the claims are not aggressively and directly defended by the company. In the case of material risks, the company should claim right to defend regardless of status as indemnitor or indemnitee.

29 Issue [3-1]: Defense considerations For example, a company should affirmatively provide for the exclusive right and power to defend third party infringement claims against its own intellectual property or other disputes affecting the scope or ownership or validity or enforceability of its IP or other property rights. This is the case whether the company is the indemnitor [breach of IP warranty] or the indemnitee [Company as licensor - the licensee indemnifies Company for infringement claims from licensed use of Company IP in Field A or Territory B].

30 Issue [3-1]: Defense considerations Alleged versus actual breach: consider indemnity language to nail down duty of indemnitor to defend such as: any third party claim resulting from any actual or alleged breach of this Agreement, or which is based on a claim that, if true, would be a breach of this Agreement by [X]. Note that any duty to defend should include separate procedural provisions setting out the respective rules regarding notice, control and participation to be followed in connection with defending the relevant claims [discussed below].

34 Issue [4]: Hold harmless Under this more restrictive rule, "hold harmless" does not give the recipient a right of indemnity against the claims of third parties, but only provides a defense against direct claims against it by the other party to the contract. "One is offensive and the other is defensive even though both contemplate third party liability situations. 'Indemnify' is an offensive right a sword allowing an indemnitee to seek indemnification. 'Hold harmless' is defensive: The right not to be bothered by the other [contract] party itself seeking indemnification." Queen Villas Homeowners Assn. v. TCB Property Management, 149 Cal. App. 4th 1, 9 (2007).

35 Issue [4]: Hold harmless Caution: Hold harmless standing alone is not necessarily an indemnity or duty to defend: A contractual provision only stating that [A] will hold [B] harmless from claims based on [A] s breaches or other factors may not indemnify [B] from 3d party claims and in most states will not provide a duty of defense under such terms in any event. The hold harmless language in a strict sense technically releases [B] from liability to [A] with respect to claims covered by the clause. [B] may have a right to implied indemnity under certain circumstances, but not necessarily a contractual indemnification right.

36 Issue [4]: Hold harmless Example: Ambiguous Hold Harmless: 8. Indemnification. [Supplier] [Licensor] hereby holds harmless... [Purchaser][Licensee] from and against.any and all claims of infringement or misappropriation based on the use of all or any part of the Technologies within the Territory at any time... [continued]

37 Issue [4]: Hold harmless Example (continued): 14. Effects of Termination. Upon the termination of this Agreement at any time, the License and all other rights and obligations of the respective parties hereunder shall cease, provided however that notwithstanding any contrary provision hereof, all of the rights and obligations of the respective parties under Section hereof, Section hereof, Section 8 hereof (Indemnification), and Section hereof, shall survive expiration or termination (for any reason) of the Agreement and remain in full force and effect.

38 Issue [4]: Hold harmless Counterpoint: Exculpatory clauses are disfavored and strictly construed against the released party. [See generally Harris v. Walker, 119 Ill. 2d 542, 519 N.E.2d 917, 919 (1988); Rooz v. Kimmel, 55 Cal. App. 4th 573, 582 (1997)]. The issue nonetheless remains one of intent based on the particular facts and circumstances and on the specific language of the agreement. This is not a debate you want to have if it can be avoided by focused drafting.

39 Issue [5]: Collective definitions Defined Terms: Since the terms indemnify, hold harmless and defend have distinct and separate meanings, consider using indemnification and indemnify as collective defined terms in the contract. Example: Each party agrees to fully indemnify and hold harmless and defend (collectively indemnify or indemnification ). This is to avoid ambiguities in other inevitable references to indemnification obligations in the contract, such as in procedural or limitation on liability clauses, referring only to the indemnification obligation" of the parties.

41 Issue [6]: Claims or damages versus liabilities Different standards: An indemnity for claims or losses or damages or similar terms is generally considered distinct from an indemnity for liabilities. The issue in part is one of timing affecting when the indemnitor is obligated to pay the indemnitee under the indemnification clause and when the statute of limitations period commences for any breach of the indemnification provision. The interplay between the obligations to indemnify and defend and the applicable statute of limitations furthermore is frequently complex and multi-leveled and can require immediate attention.

44 Issue [6]: Claims or damages versus liabilities Timing Issues a two-edged sword: The event of loss or damage versus the event of liability can be substantially different in time: indemnitee can "become liable" much earlier, (1) triggering the obligation to pay indemnification amounts much sooner than might otherwise be expected by the relevant parties, but also (2) triggering the running of the statute of limitations for the indemnification against liability if the indemnifying party fails to perform.

46 Issue [7]: Statutes of Limitations Equitable Indemnity SOL: The limitations period for equitable indemnity is much shorter and based on the statute of limitations for tort claims. [Smith v. Parks Manor, 197 Cal. App. 3d 872 (1987)]. Duty to Defend SOL: In addition, the running of the statute of limitations for a duty to defend claim will separately commence immediately upon breach of the duty to defend, which will be substantially earlier than either the obligation to indemnify for liabilities or damages.

48 Issue [8]: Scope of indemnification which arise out of or relate to (1) any breach of any representation or warranty of Company contained in this Agreement, (2) any breach or violation of any covenant or other obligation or duty of Company under this Agreement or under applicable law, (3) (4) (5)] [other enumerated categories of claims and losses]

49 Issue [8]: Types of indemnified claims The type and scope of claims - damages - liabilities being indemnified is a matter of contract. All subject matter or classes of subject matter to be covered by the indemnity should be expressly set forth in the clause. See, e.g., International Minerals & Chem. Corp. v. Avon Prods., 889 S.W.2d 111, 115 (Mo. Ct. App. 1994)( The language of an indemnity contract should be construed so as to encompass only that loss and damage which reasonably appear to have been within the intent of the parties, applying New York law).

50 Issue [8]: Types of indemnified claims Customary indemnified claims include (1) breach of representations or warranties; (2) breach of other contractual obligations; (3) violations of law; (4) losses incurred by indemnitee under specified conditions; and (5) third party claims for specific matters such as IP infringement or misappropriation. Consider backstop provision such as any other breach of any obligation or duty under this Agreement or under applicable law.

51 Issue [8]: Types of indemnified claims In the context of an acquisition transaction, in addition to standard indemnities the indemnified claims can include such matters as (1) tax liabilities, (2) environmental, health and safety liabilities, (3) known or assumed liabilities, (4) intentional misrepresentation or fraud, and (5) violations of law. Indemnification clauses in acquisition transactions in particular must be closely coordinated with the representations and warranty clauses and limitation on liability provisions, including liability caps and baskets for different categories of claims and contractual statutes of limitations for claims.

52 Issue [9]: Overbroad or defective indemnified claims Be alert to overbroad or ambiguous indemnified clauses, in particular where the indemnitor will have not breached the contract or otherwise been at fault. These are sometimes intentional but frequently result from poor or no lawyering.

53 Issue [9]: Overbroad or defective indemnified claims Examples of such indemnified claims: any act or omission of Distributor or any of its employees or agents in whole or in part, including but not limited to (a) or (b) any intentional acts of [A] in connection with the production and distribution of the Products any use of the Licensed Rights in the Territory by Licensee any liability arising out of or connected with the performance of work under this Agreement.

54 Issue [10]: Exclusions and limitations Consider indemnity carve-outs and exclusions for (1) negligence [see below], (2) wrongful or unlawful acts, (3) other contributing acts or omissions of indemnified party, (4) consequential and related damages, (5) general limitations on liability, and (6) other exclusions relevant to the contract. In the case of mutual indemnity clauses dealing with the same or related subject matter, tie breaker carveouts are necessary to avoid conflicting provisions.

55 Issue [10]: Exclusions and limitations - Example [A] indemnifies [B] from any third party claim that the Product infringes a patent or copyright enforceable in the United States, except to the extent the claimed infringement is based on or results in any material part from (a) any use of the Product other than in accordance with [this Agreement][the Specifications], (b) any unauthorized modification or alteration of the Product, (c) any combination or use of the Product with any other product or system or technologies not supplied by [A], (d) any refusal to accept or use suitable modified or replacement Products provided by [A] to avoid infringement, (e) the negligence or unlawful or wrongful acts of [B] or any Affiliate or other person acting in concert with [B], or (f) any Losses otherwise expressly subject to indemnification hereunder by [B].

56 Issue [11]: Consequential damages exclusion An indemnification clause covering any and all claims, damages, losses. can be deemed to include consequential damages and similar damages incurred by the indemnitee or third party claimant, unless such damages are expressly excluded from the indemnified claims. Must coordinate any exclusion under the indemnification clause with any general consequential damages exclusion in the contract. Primary issue will be whether third party claims representing consequential damages are to be excluded from indemnification.

57 Issue [11]: Consequential damages exclusion Example: EXCEPT FOR LIABILITIES ARISING UNDER SECTION HEREOF (INDEMNIFICATION) IN THE CASE OF THIRD PARTY CLAIMS, TO THE FULLEST EXTENT NOT PROHIBITED BY APPLICABLE LAW. Note: If the qualifier above is not limited to third party claims and the general indemnification clause includes both direct and third party claims, then this kind of qualifier renders the consequential damages clause ineffective.

58 Issue [12]: Limitations on liability provisions The parties also must coordinate the indemnification clause with any limitations on liability in the contract, including agreed caps and baskets. Common example [but watch out for the use of "indemnify" only if not defined to include hold harmless and defense]: Notwithstanding any contrary provision hereof, including Section (Indemnification), Company shall not be required to indemnify ABC under this Agreement or applicable law (1) unless the aggregate amount of Claims during [time period] exceeds $ [basket], in which case only the excess shall be indemnified, or (2) to the extent the aggregate amount of all Claims during [time period] exceeds $ [cap]; subject to [exceptions].

59 Issue [12]: Limitations on liability provisions Also consider whether the indemnification provisions are intended to be the exclusive rights and remedies of the indemnitee, therefore barring any other rights or remedies in the case of third party or even direct claims. For example: "The foregoing provisions set forth the exclusive rights and remedies of any Indemnitees and any related persons and the exclusive obligations of Indemnitor with respect to any Claims or other matters of indemnification or responsibility which are part of the subject matter of this Agreement; and the cumulative remedies provision in Section shall be not applicable to such Claims or matters."

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FanBank Merchant Agreement Please read the terms of this FanBank Merchant Agreement ( Agreement ) carefully. By clicking accept, you, an individual or entity ( Merchant or you ), are agreeing to, and to

1. LEAD GENERATION SERVICES (a) IBP agrees to collect and provide School with Leads as further specified herein and as described in the Lead Payment Schedule as may be executed by the parties from time

Insurance Market Solutions Group, LLC Sub-Producer Agreement This Producer Agreement is made and entered into effective the day of, 20, by and between Insurance Market Solutions Group, LLC a Texas Company

BUSINESS ASSOCIATE AGREEMENT This Business Associate Agreement (the Agreement ), is made effective as of the sign up date on the login information page of the CarePICS.com website, by and between CarePICS,